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Incorporation And Construction Super Summaries Notes

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This is an extract of our Incorporation And Construction Super Summaries document, which we sell as part of our Contracts 2 Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Contracts 2 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Contracts Super Summaries - Incorporation and Construction Concept

Key Cases

Issue

Principle

Page No./

Ratio

Page No./

[Para]

Terms:

JJ Savage (1ia)

Statements made during negotiation s

Was the word 'estimate' sufficiently promissory to give rise to a collateral contract?

*

Only a promise expressed as an assurance, guarantee or promise would give rise to a collateral warranty

347/3
[442]

[Para]

*

The word 'estimate' should be construed as an 'approximate calculation based on probability'

*

The only conclusion on the evidence was that Blakney formed his own judgement relying on the appellant's opinion

Oscar Chess (1ib)

Was a warranty intended when the seller produced a registration book to describe the make of a car?

*

If an intelligent bystander would infer a warranty was intended, that will suffice

*

349/2
[375]

*

349/1
[375]

The proper inference from the known facts is that it was obvious to both seller and buyer that the seller had no personal knowledge of the year the car was made.

This depends on the conduct of the parties, on their words and behaviour. Much depends on the precise words used

*

347/2
[442]

347/4
[443]

349/3
[376]

He only became the owner after a

Was a warranty intended when a seller intimated he was 'in a position to find out the history of cars'?

*

If a representation is made for the sole purpose of, and succeeds in, inducing a party to enter into a contract this creates a prima facie ground for inferring that a warranty is intended

*

This can be rebutted if proved it was an innocent representation

350/3
[67]

*

The inference is not rebutted in this case because the dealer "was in a position to know the history of the car". He could get it by writing to the makers but he did not do so.

*

Skinner splits statements made in negotiations into: Puff, representation and contractual promise (the first having no, the second some and last much contractual significance)

Furthermore he says that the English approach differs to the Australian approach but may be mentioned first.

His four steps in analysing whether or not something is a contractual promise:

great number of changes and must have been relying on the registration book. It is unlikely he would warrant the year of manufacture Dick Bentley (1ic)

Comments

*
350/3
[67]

Identify the type of

contract

*

Identify the terms of

the contract

*

Apply the common

He ought to have known better and

law test

there was no reasonable foundation for his statement.

*

Analogize to cases

The textbook cites: the words used, relevant expertise of the parties, importance of the statement/temporal

Contracts Super Summaries - Incorporation and Construction considerations as all being relevant.

Concept

Key Cases

Issue

Principle

Page No./

Ratio

Page No./

[Para]

Terms: The effect of signature

L'estrange (1iia)

OR Incorporation by Signature

What was the effect of signing a contract, a term of which excluded all other express or implied terms?

*

When a document containing contractual terms is signed, then, in the absence of fraud (or misrep) the party signing it is bound and it is immaterial whether he has read the document or not.

351/2
[403]

Comments

[Para]

*

Le Mans was a case where it was held an exclusion clause did not apply because there was no finding of a contract of hire - the document signed was not intimated to the plaintiff as a contractual document.

No evidence of fraud could be found - whether or not the plaintiff knew she signed an order form is immaterial, it was an order form and order forms contain contractual terms

*

There is no evidence of misrepresentation - the document was headed 'Sales Agreement'

*

Hence the plaintiff cannot be heard to say she is not bound by its terms.

*

Toll v (1iib)

The rights and liabilities of the parties of parties are determined by what each party by words and conduct would have led a reasonable person in the position of the other party to believe.

What was the effect of signing an Application for Credit

*

The effect of signatures is consistent with this

353/3
[179]

180/2

*

Decisions of documents of a noncontractual nature have no bearing - here it was conceded that Applications for Credit intend to affect legal relations.

*

There was no evidence to support a

358/3
[186]

358/5

Further it seems to be a relevant consideration as to whether or not the document is contractual in nature.

Click-wrap contracts are binding where "appropriately reliable methods" are used to indicate approval and consent

Contracts Super Summaries - Incorporation and Construction settled principle - a reasonable reader would rely on a signature.

*

This does not apply in cases of misrepresentation, non est factum and where a document is a memorandum of a previous contract that didn't include the term

Curtis (1iic)

Where someone misrepresents the scope of an exclusion clause, what effect is given to it

*

Any behaviour, by words or conduct, is sufficient to be a misrepresentation if it is such as to mislead the other party about the existence or extent of the exemption

[180]

357/1
[185]

361/2
[8089]

finding that Applications for Credit in the transport industry do not normally contain general terms o contract

*

*

Mans can be supported is irrelevant because the above was conceded

[189]

By failing to draw attention to the width

361/3
[809]

Furthermore it may have been understood that the document was merely a voucher and not contractual in nature. But in this case the customer had actual knowledge that it was contractual.

Concept

Key Cases

Issue

Principle

Page No./

Ratio

Sun Line (2ia)

Whether an exclusion clause on a ticket obtained upon boarding, in

*

361/4
[809]

Page No./

[Para]

Incorporation by Notice

to requirements - e.g. an "I accept" button (eBay v Creative Festival Entertainment)

Whether or not the outcome in Le

of the exclusion clause, the assistant created a false impression that the exemption clause applied only to beads and sequins

*

[188]

Comments

[Para]

Conventional offer and acceptance analysis

*

needs to be applied

an offer. The objective intention of the parties must have been that it was performance of a contract of carriage.

The ticket cannot be regarded as

363/1
[228]

Is this only for contracts of carriage? Tread lightly. All so called 'ticket cases' should be analysed according to traditional O&A analysis

Contracts Super Summaries - Incorporation and Construction exchange for an exchange order, was binding.

The ticket was a voucher of entitlement to be carried on terms already agreed. The exchange order was an option to acquire the ticket

o

subject to common sense.

Skinner's 3 questions to answer in cases of incorporation:

Their honours were led

to this conclusion by the insufficiency of opportunity to read and elect whether to accept (incl. Travel to Greece)

*

*

If an exemption clause is made to a party unaware that it is to be included the other party must do "all that [is] reasonably necessary" to bring notice of the clause to the party.

Thornton (2ib)

Where conditions are displayed inside the premises and can only be read after receipt of the ticket can they form part of the contract?

*

A customer is bound by terms brought to his notice beforehand, but not otherwise - if the terms differ on a notice brought afterwards it is too late. The contract has already been made (Marlborough Court)

*

363/2
[229]
365/6
[169]

ticket case) it comes down to if: what was done was reasonably sufficient to give notice or if the person knew or believed the document to contain conditions ( Denning
?Mellish J)

*

366/1
[170]

The exchange order mentions a

In cases of an automatic machine,

the contract is concluded when the ticket is thrust. Any liability exemption arising from a clause on the ticket cannot exempt the company of liability. Here the clause gave notice to conditions on the premises invisible before entrance.

*

365/6
[169]

to prove the latter and they had not done so

*

If the term is incorporated, does it do what the defence contends it does (Question of construction)

The former - in this case where

The burden was on the company

What is the defence (e.g. clause excluding liability - incorporated in 1 of 5 ways)

the clause was "so wide and destructive of rights" required attention to be drawn in the most explicit way (red hand)

*

What is the claim made (e.g. failure to return goods) and what is the cause of action (negligence, contract)

'Sun Line passage contract' but no particulars are given as to the 'exclusive jurisdiction clause' are made. Since insufficient was done to bring the clause to his attention it was not incorporated into the contract of carriage and could not be incorporated by insertion into the ticket.

*

In cases where notice is brought before (e.g.

*

366/1
[170]

Contracts Super Summaries - Incorporation and Construction

Concept

Key Cases

Issue

Principle

Page No./

Ratio

Page No./

[Para]

Incorporation by a Course of Dealings (ICD)

Balmain (2id)

Where notices displayed over wharf, could the company contractually impose 1 penny exit fee

*

Terms of a contract may be implied

from the circumstances without even looking to the question of reasonable notice.

*

[implied] Actual knowledge of

contractual terms can defeat a claim on its own

370/2
[390]

[Para]

*

Having travelled on the company's

boats on many occasions, he must have known their method of conducting business

*

The only contract to be implied is

one of carriage. His rights were hence no different

from someone who had got off the boat - he was on private property of his own free will and thus could only exit upon compliance with the conditions Where signed 'cart notes' given after 9-10 oral contracts contain conditions could ICD be established

*

Where documents are not 'contractual

documents' in nature, printed terms cannot be incorporated in a course of dealings

370/2
[391]

Relevant considerations are hence:

*

Timing (Rinaldi and Hill)

*

Rinaldi (2ie)

Comments

*

Both parties understood the

attachment of the cart notes to simply "identify the work done and [avoid] the need to set out particulars in the invoice itself"

*

The documents were not

contractual documents in the sense used in Hill's case There are a number of other important cases which are referred to in Rinaldi that are important in establishing a course of dealing:

370/3
[391]

*

Consistency (McCutcheon)

*

Number of occasions (SAPPA/Lillico)

*

Contractual documents (Rinaldi and Hill)

Contracts Super Summaries - Incorporation and Construction

*

McCutcheon v MacBrayne (David) [1964] 1 WLR 125 - Was a case of a contract of carriage. There was no constant course of dealing because there was no similar series of contracts made. In this case the plaintiffs sometimes signed the contract and sometimes did not and had not signed it on this occasion. "When the conduct is not consistent, there is no reason why it should still produce and invariable contractual result" (Lord Pearce). In that case it was also key that he never knew of the term AND on the occasion he did not sign the contract either (different conclusion otherwise. Lord Devlin said "Previous dealings are relevant only if they prove knowledge of the term, actual and not constructive, and assent to them" - that is the person must have known of and agreed to the term on previous occasions. "Without knowledge there is nothing". Devlin's judgement case has been doubted in later cases - he referred to how in the "make believe" world of law - the use of signatures being completely unrepresentative of their legal consequences - the consequence should really be no different had he not signed.

*

Henry Kendall & Sons v William Lilllico & Sons Ltd [1969] 2 AC 31 - Was a case where 'sold notes' were sent after oral contracts every month for three years. In that case a course of dealings was implied because of a regular course of dealing over such a long period. By dealing over such a long period the respondents evinced acceptance and readiness to be bound by the conditions of whose existence they were well aware although they had not troubled to read them.

*

Walter H Wright Pty Ltd v Hill & Co Pty Ltd [1971] VR 749 - A case of contract of carriage for machinery. This case was held to be on-all-fours with Rinaldi and led Burt CJ to an 'a fortiori' type conclusion in that the documents in Hill's Case were "at least in terms contractual" - they were a request to carry goods and not a request to accept delivery like in Rinaldi. In Hill's case their honours regarded the fact that there was no evidence that the parties mutually regarded the terms and conditions endorsed as part of the contract as the reason why the documents weren't 'contractual documents'.

*

Concept

Terms may also be incorporated by reference - e.g. in a mortgage where a document with contractual terms will be agreed to by the parties as being included in their mortgage agreement.

Key Cases

Issue

Principle

Page No./

Ratio

Page No./

[Para]

Parol Evidence Rule

SRA v Heath (3ia)

Should a contract be construed as partly oral where assurance's made regarding its terms

*

The parol evidence rule has no

application until it is determined that the contract is wholly in writing

393/3
[191]

Comments

[Para]

*

The contract should not be regarded as partly written and partly oral because:

o

It was clear to both that

the officer had no authority to

394/2
[192]

The requirements to establish a collateral are:

*

Should deal with a subject matter one would not expect to

Contracts Super Summaries - Incorporation and Construction change the term

o

find in a contract (Heilbut ) - doubted? May be rebutted by common intention (Shepperd v Ryde)

He was informed that it

was an unchangeable standard authority document

Could it give rise to a collateral warranty

Hoyt's v Spencer (3iia)

*

*

Terms of a collateral contract must be

consistent with conditions of the main agreement

*

Where collateral contract made before main contract is inconsistent can it be enforced

A collateral contract may alter the

contractual relations of the parties, but not the contractual relations established under the main contract

397/3
[146]

*

Estoppel

Construing terms

Whittet (3iiia)

*

Norco (3iiib)

*

Royal Botanic Gardens (3iib)

Must be intended to induce entry into the contract

the assurances amounted to a collateral since the assurances contradict the terms of the condition

*

Must be consistent with the main agreement

There is an inconsistency between the two agreements - the plaintiff concedes the provision in the main contract and in doing so cuts the collateral provision to the point of rendering it nugatory

Exceptions: Collateral Contracts

*
It is not possible to conclude that

The FCA in Branir saw much force to McHugh JA's arguments.

The statements of McHugh JA in State Rail v Heath as well as Kirby P and Glass JA all were consistent with promissory estoppels being founded on assurances prior to the entrance into an agreement. This was subject to the requirements of clear and convincing proof

Skinner however does not.

Disagreed with Rolfe in Whittet on the policy ground that it did not give sufficient accord to the indicators of finality and completeness that parties give when adopting a formal written expression. He also referred to the "extensive, discursive and inclusive" evidence usually provided to set up estoppels

Should the relevant clause be seen as an exhaustive list of all factors to be taken into determination in determining rent

*

Evidence of surrounding circumstances

can be used to assist in the interpretation of a written contract if the language is ambiguous or susceptible to more than one meaning

*

Considerations other than language to

be used in construction include the circumstances in which the words in question were used and from those the objective that the parties had in view (e.g. commercial contracts presuppose its genesis, background and context)

403/4
[292]

*

403/5
[292]

*

The parties to the transaction being public authorities in co-operation to provide public facilities without providing for profit of one at the expense of another The onerous position of the lessee with regards to its obligations outweighing any favourability of the clause to the lessee

*

The lack of provision for regards to any

404/1
[299]

404/1
[299]

405/1

PER also does not stop courts from considering extrinsic evidence when considering if a term should be implied into the contract (Codelfa)

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